Terms of Service
Last Updated: April 10, 2020
These Terms of Service (“Terms”) apply to your access to and use of the websites, the smart door opener, mobile applications and other products and services (collectively, the “Services”) provided by Wayzn (“Wayzn” or “we”). By clicking [“I Accept”] or by using our Services, you agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 16. If you do not agree to these Terms, do not use our Services.
We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through our Services or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services.
If you have any questions about these Terms or our Services, please contact us at firstname.lastname@example.org.
You must be at least 13 years of age to use our Services. If you are under 18 years of age (or the age of legal majority where you live), you may use our Services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such user in relation to our Services. If you use our Services on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us.
Use of the Services and of any Wayzn-branded device or accessory (the “Products”) should not replace your good judgment and common sense. Please read and comply with all safety notices and guidelines that accompany the Products, including guidelines listed here. You are responsible for the safe operation of the Products in accordance with the safety notices and guidelines.
4. User Accounts and Account Security
You may need to register for an account to access some or all of our Services. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. If you permit others to use your account credentials, you are responsible for the activities of such users that occur in connection with your account. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.
The individual who creates an account is the “Owner” of that account and is the Owner of the Products associated with that account. Individuals who are authorized to access an Owner’s Products and Services are “Authorized Users.” Authorized Users may have the ability to use the Services and monitor and control the Products. Authorized Users may also view information (including personal information) and content across an Owner’s Products. The Owner also hereby agrees to be fully responsible for all actions taken by Authorized Users relating to the Owner’s Products and account. If you are an Owner who invites or enables an Authorized User, you acknowledge and agree that said Authorized User may subsequently invite or enable other Authorized Users with the same access and ability to use your Products as set out above. As a result, if you are an Owner, you should only authorize those individuals whom you trust to access your account and Products.
5. Agreed Usage and Limitations of Services and Products
(a) While we aim for the Services to be highly reliable and available, they are not intended to be reliable or available 100% of the time. The Services are subject to sporadic interruptions and failures for a variety of reasons beyond Wayzn’s control, including Wi-Fi intermittency, service provider uptime, mobile notifications and operators, among others. You acknowledge these limitations and agree that Wayzn is not responsible for any damages allegedly caused by the failure or delay of the Services.
(b) You acknowledge and agree that the Products and Services, whether standing alone or when interfaced with third-party products or services, are not certified for emergency response. You understand that service interruptions may result in the Services being unreliable or unavailable for the duration of service interruptions. We cannot and do not guarantee that you will receive notifications within any given time, or at all. You agree that you will not rely on the services for any life safety or critical purposes.
(c) You are responsible for maintaining the security of your Products, account, and home, and you must take reasonable steps to protect your account information and access to your account and Wayzn device. All use of the Services through your account (by you or others) is your responsibility. We strongly recommend that you use precautions when activating your Products to ensure safety, for example, by using a security camera to view the surrounding areas to determine safety while using the Products or Services to open any doors. We strongly recommend that you do not use the Service on a mobile device that has a “jail broken” or “rooted” operating system, as this can potentially allow other applications to circumvent security features on your mobile device. Any use of such mobile devices is at your own risk.
6. Prohibited Conduct and Content
You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Services. You will not:
- Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
- Use or attempt to use another user’s account without authorization from that user and Wayzn;
- Sell, resell or commercially use our Services;
- Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;
- Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;
- Use our Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
- Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
- Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Services;
- Develop or use any applications that interact with our Services without our prior written consent;
- Send, distribute or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;
- Bypass or ignore instructions contained in our robots.txt file; or
- Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
Enforcement of this Section 5 is solely at Wayzn’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 5 does not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by such rules.
7. Ownership; Limited License
The Services, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by Wayzn or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services for your own personal, noncommercial use. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights.
8. Intellectual Property
All trademarks and logos, product or service names, slogans and the look and feel of the Services are trademarks of Wayzn and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Services are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.
You may voluntarily post, submit or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about Wayzn or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including, without limitation, to develop, copy, publish, or improve the Feedback in Wayzn’s sole discretion. You understand that Wayzn may treat Feedback as nonconfidential.
10. Third-Party Content
We may provide information about third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. Wayzn does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.
To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Wayzn and our officers, directors, agents, partners and employees (individually and collectively, the “Wayzn Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to your or your authorized users’ (a) access to or use of the Services; (b) Submissions or Feedback; (c) violation of these Terms; (d) violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) conduct in connection with the Services. You agree to promptly notify Wayzn Parties of any third-party Claims, cooperate with Wayzn Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees). You also agree that the Wayzn Parties will have control of the defense or settlement, at Wayzn’s sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Wayzn or the other Wayzn Parties.
(a) Your use of our Services is at your sole risk. Except as otherwise provided in a writing by us, our Services and any content therein are provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Wayzn does not represent or warrant that our Services are accurate, complete, reliable, current or error-free. While Wayzn attempts to make your use of our Services safe, we cannot and do not represent or warrant that our Services or servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Services.
(b) Your Product may be covered under our standard limited warranty. Please refer to our Product Warranty Page at [insert link] for information.
(c) The services may provide you with information regarding your products (“Product Information”) or other peripherals connected to your products (“Product Peripherals”). The type of Product Peripherals that may be connected to your Products may change from time to time, without limited the generality of the disclaimers above, all product information is provided for you convenience, “as is” and “as available.” Wayzn does not represent, warrant, or guarantee that product information will be available, accurate, or reliable.
13. Limitation of Liability
To the fullest extent permitted by applicable law, Wayzn and the other Wayzn Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits, even if Wayzn or the other Wayzn Parties have been advised of the possibility of such damages.
Using our Wayzn services on a mobile device that has a “jail broken” or “rooted” operating system is not recommended, and such use is at your own risk. You agree that Wayzn will not be liable for any loss of functionality and will indemnify us for all damage or liability caused by such use.
The total liability of Wayzn and the other Wayzn Parties for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to $100 or the amount paid by you to use our Services.
The limitations set forth in this Section 13 will not limit or exclude liability for the gross negligence, fraud or intentional misconduct of Wayzn or the other Wayzn Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
To the fullest extent permitted by applicable law, you release Wayzn and the other Wayzn Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
15. Transfer and Processing Data
In order for us to provide our Services, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law.
16. Dispute Resolution; Binding Arbitration
Please read the following section carefully because it requires you to submit to binding arbitration (and jury trial waiver) of any and all Disputes (other than specified intellectual property claims and small claims) with Wayzn and limits the manner in which you can seek relief from Wayzn. No class or representative actions or arbitrations are allowed under these Terms.
Some jurisdictions may limit or prohibit arbitration agreements or class action waivers. If you are a resident of such a jurisdiction, the arbitration agreement and class action waivers below are not applicable to you. Instead, the provisions requiring that Disputes be heard in small claims court will apply to any claims that you may have against Wazyn. If your Dispute exceeds the monetary or other limits on jurisdiction of your local small claims court, any Dispute will be heard in federal or state courts, sitting in Santa Clara County, California.
Binding Arbitration; Disputes; Small Claims. You and Wayzn agree to waive any right to a jury trial, or the right to have any Dispute resolved in any court, and instead accept the use of binding arbitration (which is either (a) the referral of a Dispute with an amount in controversy of less than $5,000.00 to one impartial person for a final and binding arbitration, or (b) the referral of a Dispute with an amount in controversy of $5,000.00 or more to three impartial persons for a final and binding determination); provided, however, that you have the right to litigate any Dispute in small claims court if all the requirements of the small claims court, including any limitations on jurisdiction and the amount at issue in the Dispute, are satisfied. You agree to bring a Dispute in small claims court only in your county of residence or Santa Clara County, California. “Dispute” as used in these Terms means any dispute, cause of action, claim, or controversy arising out of or in any way related to these Terms or the Services, including but not limited to personal injury disputes and disputes that involve third parties (such as developers of content), except any dispute, cause of action, claim, or controversy relating to your or Wayzn’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and/or patents). This Dispute Resolution and Arbitration section does not prevent the parties from seeking public injunctive relief in a court of competent jurisdiction.
No Class Arbitrations, Class Actions, or Representative Actions. You and Wayzn agree that any Dispute is personal to you and Wayzn, and that any Dispute will be resolved only by an individual arbitration and will not be brought, whether inside or outside of arbitration, as a class or representative action, or on behalf of any other person or persons.
Federal Arbitration Act. You and Wayzn agree that these Terms affect interstate commerce and that the enforceability of this section will be governed by, construed, and enforced, both substantively and procedurally, by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), to the maximum extent permitted by applicable law, consistent with the Governing Law provisions below.
Confidentiality. The arbitrators, Wayzn, and you will maintain the confidentiality of any proceedings, including but not limited to any and all information gathered, prepared, and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrators will have the authority to make appropriate rulings to safeguard that confidentiality, unless the law provides to the contrary.
Process. Our goal is to resolve claims fairly and quickly. Accordingly, for any Dispute that you have against Wayzn, you agree to first contact Wayzn and attempt to resolve the claim informally by sending a written notice of your claim (“Notice”) to Wayzn by email at email@example.com. The Notice must (a) include your name, residence address, email address, and mobile telephone number; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought. Our notice to you will be similar in form to that described above. If you and Wayzn cannot reach an agreement to resolve the claim within thirty (30) days after such Notice is received, then either party may, as appropriate in accordance with this section, submit the Dispute to binding arbitration administered by JAMS or, where applicable, in court. You will have the right to an in-person hearing in your hometown area. In the case of a Dispute with an amount in controversy of less than $5,000.00, the JAMS Streamlined Arbitration Rules & Procedures will apply. In the case of a Dispute with an amount in controversy of $5,000.00 or more, the JAMS Comprehensive Arbitration Rules & Procedures will apply, and each party will pick one arbitrator, with those two arbitrators picking the third arbitrator who will be the chief arbitrator. In the event that JAMS declines or is unable to administer the arbitration, you and Wayzn agree to have the arbitration administered by the American Arbitration Association (“AAA”), or another mutually agreed-upon administrator, in accordance with the AAA Consumer Arbitration Rules. If, after making a reasonable effort, you and Wayzn are not able to agree upon an arbitration forum, JAMS will appoint an arbitration forum or arbitrators. The arbitration will be conducted in accordance with either the JAMS Streamlined Arbitration Rules & Procedures or the JAMS Comprehensive Arbitration Rules & Procedures, as indicated above (collectively, the “JAMS Rules”) then in effect, and you agree that such rules are subject to changes that JAMS may make from time to time. The JAMS Rules and other information about JAMS and arbitration are available at https://www.jamsadr.com, or by calling 1-800-352-5267. By agreeing to these Terms, you either (1) acknowledge that you have read and understand the JAMS Rules or (2) waive reading the JAMS Rules. You and Wayzn agree that the terms set forth in these Terms govern the arbitration. You and Wayzn agree that any Dispute must be commenced or filed within one year after such claim arises; otherwise, the Dispute is permanently barred.
As limited by the FAA, these Terms, and the applicable JAMS Rules, the arbitrators will have the exclusive power and jurisdiction to make all procedural and substantive decisions concerning the Dispute, including the power to determine the question of arbitrability; provided, however, that this power does not include the power to conduct a class arbitration or a representative action, which is prohibited by these Terms (as stated above). The arbitrators may conduct only an individual arbitration, may not consolidate more than one person’s claims, and may not preside over any form of representative or class proceeding or any proceeding on behalf of or involving more than one person.
Fees and Award. If you initiate a Dispute, you will be required to pay a $250 filing fee, which is approximately equivalent to current court filing fees. All costs associated with the arbitration will be paid by Wayzn. The party that does not prevail in the Dispute will be required to pay the other party’s fees and costs, including attorneys’ fees, unless you live in California, in which case Wayzn will pay its own fees and costs. An arbitrator’s award will consist of a written statement stating the disposition of each claim and will provide a concise written statement of the findings and conclusions on which the award is based.
Opt Out. You may opt out of this dispute resolution procedure by providing notice to Wayzn no later than thirty (30) calendar days from the date you first accepted these Terms and used the Services. To opt out, you must send notice by e-mail to firstname.lastname@example.org, with the subject line: “Arbitration Opt Out,” and include in the e-mail (a) your name and address and (b) the date on which you first accepted these Terms and used the Services. These is the only form of notice that will be effective to opt out of this dispute resolution procedure.
Severability and Survival. If any portion of this Dispute Resolution and Arbitration section is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the arbitration section or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the arbitration section; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Dispute Resolution and Arbitration section is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect, and the remainder of this Dispute Resolution and Arbitration section will be enforceable.
17. Governing Law and Venue
Any dispute arising from these Terms and your use of the Services will be governed by and construed and enforced in accordance with the laws of California, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of California and the United States, respectively, sitting in Santa Clara, California.
18. Modifying and Terminating our Services
We reserve the right to modify our Services or to suspend or stop providing all or portions of our Services at any time. You also have the right to stop using our Services at any time. We are not responsible for any loss or harm related to your inability to access or use our Services.
If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
The failure of Wayzn to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. You agree that communications and transactions between us may be conducted electronically. Under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.